APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
507 N.E.2d 1285, 155 Ill. App. 3d 363, 107 Ill. Dec. 916 1987.IL.551
Appeal from the Circuit Court of Will County; the Hon. Angelo F. Pistilli, Judge, presiding.
JUSTICE STOUDER delivered the opinion of the court. BARRY, P.J., and SCOTT, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
The defendant, Jacqueline King, appeals from the judgment of the circuit court of Will County which resulted in her imprisonment for the offenses of armed violence, unlawful possession of a controlled substance, production of a Cannabis sativa plant, unlawful possession of a hypodermic syringe, and unlawful possession of a firearm. On appeal, King contends that: (1) the offense of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2) cannot be predicated on the felony offense of unlawful possession of a controlled substance; (2) the State failed to prove that she was armed with a dangerous weapon for the purposes of the armed violence statute because the gun was not "on or about her person" nor was she "otherwise armed"; (3) the jury was improperly instructed through the use of a non-Illinois Pattern Jury Instruction jury instruction as to the meaning of "armed with a dangerous weapon"; (4) she should not have been sentenced for both armed violence and the underlying felony of possession of a controlled substance; and (5) despite trial counsel's failure to file a post-trial motion, this court should consider the issues raised on this appeal.
On June 24, 1983, nine officers of the Metropolitan Area Narcotics Squad executed a valid search warrant at King's apartment. The officers identified themselves and they were admitted to the apartment without incident. King met the officers at the door wearing only a blanket wrapped around her and stated that she was about to take a bath. King's codefendant, Willie Green, was found sleeping in the south bedroom and a third person, Jason King, an eight- or nine-year-old boy, was found sleeping in a walk-in closet which had been converted into a bedroom. The officers seized a marijuana plant, which King admitted growing, from the kitchen windowsill. Upon entering the bedroom, the officers discovered a gun, a pink pill bottle containing two foil packets of heroin, and a syringe on a coffee table three feet from the bed. The gun was not loaded and the officers' search did not uncover any cartridges for which the weapon was chambered. King admitted that the heroin was hers, but both King and Green denied any knowledge of the gun. Neither King nor Green possessed a valid firearm owner's identification card.
At the instructions conference, the State tendered a non-IPI jury instruction which was eventually given over King's objection. The instruction, defining "armed with a dangerous weapon" for the purposes of King's trial, was as follows:
"The mere presence of a pistol during the commission of the offense of unlawful possession of a controlled substance is sufficient for a person to be considered armed with a dangerous weapon. The person need not actually use the weapon in the commission of the offense of unlawful possession of a controlled substance."
The State's Attorney referred to the instruction and the concept of constructive possession during closing arguments and commented that actual possession was not required to substantiate the charge.
After jury deliberation, King was convicted on all counts. A sentencing hearing was conducted and the court sentenced King to seven years for the armed violence, three years for the unlawful possession of heroin, 364 days for the production of the Cannabis sativa plant, 364 days for the possession of the hypodermic syringe, and 364 days for the unlawful possession of the firearm.
Initially, King urges this court to consider the issues raised on this appeal notwithstanding defense counsel's failure to file a post-trial motion. King contends that this court should hear this appeal on the following bases: first, that substantial error existed at trial and these errors may be noticed in accord with Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)); second, that the interests of Justice require a review of this case because substantial defects existed in the jury instructions procedure in contravention of Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)); and third, that the failure to file the post-trial motion demonstrated ineffective assistance of counsel. In view of the issues involved in this case, we invoke jurisdiction under the "plain error" rule of Rule 615(a) and will not address King's alternative arguments concerning the instructions conference or ineffective assistance of counsel.
King asserts that the armed violence statute is not intended to apply to the offense of unlawful possession of a controlled substance where guilt is based upon constructive possession of the contraband. We find no merit in this argument because both the plain language of the statute and prior decisions of the Illinois courts are indicative of the opposite Conclusion. The armed violence statute states:
Section 33A-1, the definitions used for purposes of the armed violence statute, specifically lists a pistol as a category I weapon which would bring the person committing the felony under the purview of the armed ...